A 2007 Debate Provoked by Richard Posner Illuminates the Current Clash Over Judicial Power in Israel

The appeals court judge argued that the Israeli Supreme Court had usurped the role of legislators.

During my family's recent visit to Israel, we spent time with my brother in Haifa, who gave one of my daughters a "Guardians of Democracy" T-shirt worn by protesters who oppose the current government's plans to constrain judicial power. We also spent time with my sister in Gush Etzion, a bloc of settlements near Jerusalem, who casually referred to such protesters as "anarchists."

Those characterizations, each misleading in its own way, reflect a disagreement about the proper role of courts in a democracy—a debate that echoes familiar arguments in the United States. Israel's version of that controversy, which has featured mass demonstrations that Prime Minister Benjamin Netanyahu sees as evidence of a nascent "civil war," is flaring up again as the Knesset, Israel's parliament, considers a bill that would bar the Israeli Supreme Court from blocking government decisions based on a lack of "reasonableness." That proposal, while less radical than bills that would virtually eliminate judicial review, encapsulates the issues raised by the determination of Netanyahu's coalition partners to restrict the court's authority.

Those issues, which go to the heart of executive, legislative, and judicial legitimacy, were illuminated 16 years ago by an exchange between Richard Posner, a now-retired judge on the U.S. Court of Appeals for the 7th Circuit, and Barak Medina, a senior lecturer in law at the Hebrew University in Jerusalem. Their debate centered on the judicial philosophy of Aharon Barak, who served as a justice of the Israeli Supreme Court from 1978 to 1995 and as its president from 1995 to 2006. That period included the "constitutional revolution" in which the court took on the task of enforcing limits imposed by Israel's "basic laws."

Barak is the bête noire of the right-wing legislators in Netanyahu's coalition, who see themselves, contrary to their opponents' take, as defenders of democracy against judicial usurpation. Barak "has brought disaster on Israel," says Justice Minister Yariv Levin. "His path stands in contrast to democracy. To him, judges are preferable to the people's elected officials."

In a 2007 review of Barak's book The Judge in a Democracy, Posner offered a similar critique, portraying the Israeli jurist as an "enlightened despot" and "legal buccaneer" who overrode government policy based on his personal preferences. "Barak does not attempt to defend his judicial practice by reference to orthodox legal materials; even the 'Basic Laws' are mentioned only in passing," Posner wrote in The New Republic. "His method, lacking as it does any but incidental references to enacted provisions, may seem the method of the common law (the judge-made law that continues to dominate many areas of Anglo-American law, such as contracts and torts), except that common-law rules are subject to legislative override, and his rules are not. The significance of this point seems to elude him. He takes for granted that judges have inherent authority to override statutes. Such an approach can accurately be described as usurpative."

In particular, Posner took issue with Barak's deployment of vague abstractions such as "reasonableness," "justice," and "equality," which Posner called "as empty as they are lofty," to second-guess the choices of elected representatives. As Posner saw it, that "lawless" method invited unjustified interference with the democratic process.

To illustrate the arbitrariness he saw as characteristic of Barak's approach, Posner cited "a ruling made during the Gulf war in 1991 requiring the Israeli army to distribute more gas masks to residents of the West Bank." Defending that decision, Barak said: "We did not intervene in military considerations, for which the expertise and responsibility lie with the executive. Rather, we intervened in considerations of equality, for which the expertise and responsibility rest with the judiciary."

Although the basic laws do not explicitly mention equality, the Israeli Supreme Court has deemed that principle implicit in the "human dignity" protected by the 1992 basic law. Yet Barak's book "strongly commends the balancing of competing interests as a technique of judicial decision-making," Posner said, "implying that in the gas-mask case the court should have balanced against considerations of equality whatever military reasons the army gave for distributing fewer gas masks on the West Bank than in Israel proper, such as that Iraq was more likely to aim its missiles at Jews than at Arabs." The general test, according to Barak, is whether "a reasonable person responsible for security would be prudent to adopt the security measures that were adopted."

Medina's rejoinder to Posner, published the same year in the Harvard International Law Journal, faulted the American judge for misrepresenting the Israeli system of government. Contrary to Posner's assertion that the Israeli Supreme Court's decisions are not "subject to legislative override," Medina noted, the Knesset can change the basic laws at will, typically by a simple majority vote. Somewhat contradictorily, Medina also objected to Posner's assertion that "Israel does not have a constitution." He noted that "the constitutional assembly chosen to draft a Constitution decided, soon after its election, to also serve as the legislature," and "it established explicitly that all future Knessets will have 'all the powers' given to the First Knesset."

Treating the basic laws as a constitution, Medina argued, "is based upon the recognition of the importance of judicial review in ensuring respect for basic human rights" and "protecting the fundamental principles of the State of Israel as a democratic and Jewish state." He said that "appropriate compromise" also recognizes that "it is best to base judicial review upon explicit consent of the people, via its representatives in Knesset."

Medina emphasized that the Knesset had accepted judicial review based on the basic laws. "The Knesset did not amend the Basic Laws in response to the Court's decision regarding the 'constitutional revolution,' and refrained from limiting the Court's power to practice judicial review over legislation," he wrote. "Moreover, in recent years, the Knesset usually examines proposed legislation to ensure its accordance with the Basic Laws, recognizing the supremacy of the provisions of the Basic Laws over 'regular' legislation. The Knesset accepted, by a clear consensus, the Court's decisions in which it voided provisions in legislation which violated the Basic Laws."

As demonstrated by the ongoing clash over judicial review, that "clear consensus" has broken down. And the fact that the basic laws were enacted by the national legislature, which retains the power to alter them, makes those ground rules strikingly different from the U.S. Constitution, which by design is very difficult to change. While Medina surely is correct that judicial review is essential in "ensuring respect for basic human rights," empowering the legislature to determine the content of those rights obviously makes them less secure than they would be in a system where the amendment process is more arduous and complicated. That is especially true under a governing scheme like Israel's, which lacks the checks and balances achieved through an autonomous lower level of government and separation of legislative and executive powers.

In this context, judicial review is both more important and more precarious than it is in the United States. At the same time, the legitimacy of that power is open to question when courts go beyond interpreting and applying the law. According to Posner, that is what Barak's approach demands.

Medina argued that Posner grossly exaggerated the extent to which the Israeli Supreme Court interfered with executive and legislative choices. He noted that the government and the Knesset had made many momentous decisions—including "the economic program of 1985, the expansion of the settlements in the Occupied Territories, the invasion into Lebanon and the withdrawal from Lebanon, the Oslo peace Accords, the policy of privatization, the increases and subsequent decreases in stipends for families with children, the disengagement from Gaza, Operation Desert Shield against Palestinian terror organizations, the construction of the Separation Wall, changes in Israel's immigration policy, [and] the policy adopted in the Second Lebanon War"—without "significant intervention by the Court."

Medina added that the court had not responded to "governmental inactions" in areas such as "measures to close widening economic gaps in society and the deepening of poverty," "discrimination by private agents against Arab citizens," and "delays in decisions to desalinate water and to recycle materials." He noted that the court "did not instruct the Government to adopt a policy of affirmative action in order to contend with inequality," "did not instruct the State to set up soup kitchens or subsidize lifesaving drugs," "did not prevent discriminatory security checks of Arab citizens in airports," and "did not even examine the constitutionality of the decision not to draft Arabs into the Israel Defense Forces."

While some of these policies raise issues that are plausibly related to provisions of Israel's basic laws and/or resemble constitutional claims that might be brought in U.S. courts, many of them seem far afield from such concerns. Medina nevertheless implied that the Israeli Supreme Court could have intervened in all of these areas, including large chunks of social and economic policy, but chose not to do so, perhaps because it worried about the potential for the sort of political backlash it now faces. It is precisely this open-endedness to which Posner objected: When judges reject or mandate government policies without "reference to orthodox legal materials," he argued, they are usurping the role of legislators.

Medina did not really have a response to that objection, except to suggest that judges unavoidably act as legislators while pretending otherwise, a point he said Posner's own preferred judicial method concedes. "According to [Posner's] philosophy, a judge should ignore deontological limitations, for instance the recognition of values such as the dignity of man or tolerance—a view which is in line with his critique of Barak," Medina wrote. "However, Posner does not maintain that morality is irrelevant for judicial decision. In fact, the opposite is true: Posner believes that the judicial decision should be based—entirely—upon a moral approach that he calls 'legal pragmatism.'"

Under that approach, Medina said, "a judge should render his decision by calculating the anticipated social ramifications of the application of each of the possible interpretations in the given case (though the nature of the calculation is unclear). Even if one were to ignore the difficulties in implementing such an eclectic approach, it is clear that this approach conforms with the position that a judge's decision should ensure the greatest harmony between the law and (a certain definition of) the social good. The fact that Posner believes that the correct moral approach is consequentialism (and not deontology) does not make his approach any more legitimate than that which Barak espouses; thus his harsh critique of Barak's approach is astounding."

Even by Medina's account, however, legal pragmatism comes into play when a judge chooses between "possible interpretations" of the law, which requires an intelligible principle that arguably can be applied in different ways. According to the basic law that the Knesset enacted in 1992, for example, "every person has a right to privacy and to intimacy." That right includes restrictions on searches of "private premises" and protection for "the confidentiality of conversation" and of "writings or records." On its face, that guarantee is broader than the U.S. Constitution's privacy protections, and it is clearly relevant in search and seizure cases.

Medina mentioned various other ways in which the basic laws have been construed to protect "fundamental rights of the individual." He noted decisions "voiding the government's decision to prevent the participation of certain parties and candidates in elections," "enforcing the prohibition against discrimination against Arab citizens in the distribution of state land," "enforcing the prohibition against discrimination against women in a variety of contexts," "protecting freedom of speech," "prohibiting the use of harmful means—including torture—in investigations of those suspected of terror activities," and "prohibiting the use of military methods that cause 'disproportionate' harm to citizens."

Those cases involved disputes that implicate widely recognized civil liberties. Not so the hypothetical decisions that Medina imagined, which involved issues such as recycling, desalination, pharmaceutical subsidies, and welfare programs to address "widening economic gaps."

Medina also noted that Israeli "judicial activism" has included "relatively great involvement in ensuring the proper functioning of politics (predominately
restricting those who are suspected of breaking the law from serving in public office, barring someone from public office when there is a conflict of interest, and so forth)." The New York Times cites a recent example: Israeli judges invoked "reasonableness" to "bar Aryeh Deri, a veteran ultra-Orthodox politician, from serving in Prime Minister Benjamin Netanyahu's cabinet. They said it was unreasonable to appoint Mr. Deri because he had recently been convicted of tax fraud."

The bill that the Knesset is taking up this week targets decisions based on "reasonableness," which the Times describes as a "flexible and contentious legal standard that currently lets the court intervene in governance." Under that standard, the paper says, "a decision is deemed unreasonable if a court rules that it was made without considering all relevant factors or without giving relevant weight to each factor, or by giving irrelevant factors too much weight."

That sort of analysis seems indistinguishable from the judgments that elected officials themselves are charged with making. It is not hard to understand why critics would argue that the "reasonableness" standard invites judges to overstep their proper authority. The question is whether Israel can curb such unbridled discretion without compromising the rights that the Knesset has promised to respect.

[This post has been revised to clarify that the "reasonableness" standard applies to executive decisions, as opposed to statutes.]